JUDGMENT

KURIAN, J.

1. Whether the land which is not a private forest as defined under The Kerala Private Forest (Vesting and Assignment) Act, 1971 can be brought under the teeth of The Kerala Preservation of Trees Act, 1986, is the moot questions arising for consideration in these cases.

2. The Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereafter referred to as the Vesting and Assignment Act) was enacted to provide for the vesting in the Government of private forest in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation. It is stated in the preamble that private forest in the State of Kerala are agricultural lands and that the government wanted to utilize such agricultural lands so as to increase agricultural production and promote welfare of the agricultural production in the State. It may be noted that private forest were exempted from the purview of The Kerala Land Reforms Act, 1963, in the matter of ceiling.

3. Private forest has been defined under Section 2(f) of the Vesting and Assignment Act. The provision reads as follows :

'2(f) private forest means

(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganization Act, 1956 (Central Act 37 of 1956) -

(i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-

(A) Land which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964).

(B) Lands which are used principally for the cultivation of tea, coffee, coca, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

Explanation : Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;

(C) Land which are principally cultivated with cashed or other fruit bearing trees or are principally cultivated and any other agricultural crop and

(D) Sites of buildings and land appurtenant to and necessary for the convenient enjoyment or use of such buildings;

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas.

Explanation: For the purpose of this clause, a land shall be deemed to be waste land notwithstanding the existence thereon of scattered trees or sbrubs (sic shrubs);

(Emphasis supplied)

4. Section 3 of the Vesting and Assignment Act provides for the vesting of the private forests in the Government. In this Act, 10th May, 1971 has been noted as appointed day. The provision reads as follows :

3. Private forest vest in Government.

(1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.

(2) Nothing contained in sub-section (1) shall apply in respect of so much extend of land comprised in private forest held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.

Explanation: For the purpose of this sub-section, cultivation includes cultivation of trees or pla